Facts of the case

The Legal Services Corporation Act authorizes the Legal Services Corporation (LSC) to distribute funds, appropriated by Congress, to local grantee organizations, which provide free legal assistance to indigent clients in welfare benefits claims. The Omnibus Consolidated Rescissions and Appropriations Act of 1996 prohibited the LSC from funding any organization that represented clients in an effort to amend or challenge existing welfare law, among other things. The prohibition was such that grantees could not continue representation in a welfare matter even where a constitutional or statutory validity challenge became apparent after representation was well under way. LSC grantee lawyers and others filed suit to have the restriction declared unconstitutional. The District Court denied a preliminary injunction. However, the Court of Appeals invalidated the restriction, concluding that it was impermissible viewpoint discrimination that violated the First Amendment.

Question

Does the funding restriction on the Legal Services Corporation, which prevents attorneys from representing clients in an attempt to amend or challenge existing welfare law, violate the First Amendment?

The opinion of the Court in No. 99-603, Legal Services Corp. versus Velazquez will be announced by Justice Kennedy.

Anthony M. Kennedy:

By enacting the Legal Services Corporation Act, Congress established the Legal Services Corporation and that corporation is referred to as the LSC.

One of the LSC's purposes is to provide funds to local organizations for persons unable to afford legal assistance including, as particularly relevant for this case, indigent clients who need representation in litigation for welfare benefits.

This case requires us to decide whether one of the conditions imposed by Congress on use of LSC funds violates the First Amendment rights of LSC grantees and their clients.

The restriction found in the federal statute prohibits legal representation funded by LSC monies, if the representation involves an effort to amend or otherwise challenge existing welfare law.

The restriction prevents an attorney from arguing to a court that a state statute conflicts with a federal statute, or that either a state or federal statute violates the Constitution.

This suit was brought by lawyers as employed by LSC grantees in New York together with other interested parties; they sought to declare the restriction invalid.

The Court of Appeals for the Second Circuit approved an injunction that the District Court has issued against enforcement of the provision.

It held that the restriction is an impermissible viewpoint based discrimination or violation of the First Amendment.

We now affirm.

The United States and LSC rely on this Court’s opinion in Rust versus Sullivan as support for the LSC program restrictions.

In Rust government monies appropriated for family planning services could not be used in programs where abortion was a method of family planning.

We upheld that restriction reasoning that Congress had not discriminated against viewpoints on abortion, but it merely chosen to fund one activity to the exclusion of the other.

Neither the latitude for government speech nor the rationale in Rust applies to subsidies for private speech in every instance however.

It does not follow that viewpoint based restrictions are proper when the government does not itself speak or subsidize transmittal of the message it favors, but instead expends funds to encourage a diversity of views from private speakers.

The LSC program was designed to facilitate private speech not to promote a governmental message.

Interpretation of the law and the Constitution is the primary mission of the judiciary, by seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts.

The enactment prohibits speech upon which courts must depend for the proper exercise of the judicial power.

The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation the client is unlikely to find other counsel.

The affect of the restriction is to prohibit argumentation by attorneys that existing welfare laws are unconstitutional, even though the program was created for litigation involving welfare, and even though the ordinary course of litigation involves the expression of theories by attorneys on multiple sides of an issue.

The attempted restriction is designed to insulate the government’s interpretation of the Constitution from judicial challenge.

The Constitution does not permit the government to confine litigants and their attorneys in this manner.

We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge.

Where private speeches involved even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas, thought inimical to the government's own interest.

For the reasons we have set forth then the judgment of the Court of Appeals is affirmed.

Justice Scalia has filed a dissenting opinion in which the Chief Justice and Justices O’Connor and Thomas joined.